Libertarians Lost Europe Because They Were Too Afraid to Litigate
A conversation with Adrián Rubio on the Rasheed Griffith Show
Or listen on Spotify
Show Notes
Libertarians in the EU have forgotten how to win. This episode explores an idea that sounds counterintuitive at first: that the very machinery of EU law, so often criticized for its bureaucracy and regulatory sprawl, can actually be repurposed into a tool for liberalization. My guest, Adrián Rubio, Law Professor at the Universidad de las Hespérides, makes the case that while the EU as a political project has a natural tendency to centralize power in Brussels, its jurisprudence and procedural mechanisms remain remarkably open-ended. Those tools can just as easily be used to dismantle unnecessary restrictions as to expand them. What matters is who picks them up, and to what end.
For decades, libertarians, conservatives, and progress-minded reformers have treated the European Union as something to fear or resist: a sprawling technocracy that smothers local autonomy and regulates markets to death. And yes, the record is full of Green Deal mandates, ESG governance schemes, and Brussels-driven sovereignty claims. But if you zoom in on the nuts and bolts of EU case law—Simmenthal, Gas Natural, even the VTC Barcelona licensing fights—you find something surprising: doctrines and procedural devices that national courts can deploy to strike down over-zealous domestic regulations. In other words, Europe’s much-maligned legal order might also be the sharpest weapon against the sclerosis of its member states.
The provocation here is simple: perhaps libertarians and classical liberals have been negligent. They have abandoned litigation as a strategic weapon, leaving the field to environmentalist NGOs, precautionary regulators, and bureaucrats eager to stretch their mandates. But what if pro-freedom lawyers and institutions mobilized? What if they took preliminary references seriously, used proportionality tests to challenge precautionary bans, or demanded real enforcement of the internal market? Every national courtroom in the EU is, in effect, also a European courtroom. Yet the docket is shaped by those who bother to bring the cases.
This conversation, then, is not just about diagnosing Brussels. It is about reimagining the battlefield. Like technology, it can either entrench power or liberate markets. What Adrián and I argue is that the next generation of lawyers, NGOs, and think tanks should stop treating the EU as a monolith to complain about and start treating it as a laboratory to experiment in. If procedural law has already been leveraged to delay infrastructure and halt development, why shouldn’t it also be leveraged to expand freedom and accelerate growth? The challenge is not legal impossibility—it is strategic neglect.
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Adrián Rubio https://x.com/_adrubio
Rasheed Griffith https://x.com/rasheedguo
Recommended
Preliminary References to the European Court of Justice - Morten P. Broberg, Niels Fenger
Four Functions of the Principle of Primacy in the ECJ’s Post-Lisbon Case Law - Katja Ziegler, Päivi Neuvonen and Violeta Moreno-Lax (eds), Research Handbook: The General Principles of EU Law (Edward Elgar, 2021, Forthcoming)
Liberalisation and the pursuit of the internal market - Niamh Dunne
Mutual Recognition In Goods And Services: An Economic Perspective - Jacques Pelkmans
The Preliminary Ruling Procedure - Davor Petrić
La relación de los taxis-VTC y los conceptos autónomos del Derecho Europeo - Natividad Goñi Urriza
This transcript was automatically generated by AI and lightly edited. We don’t catch every error, so if you spot one, send a message/email via progress@cpsi.org.
Rasheed: Hello, Adrian. Thank you so much for joining me on the podcast today.
Adrián Rubio: Thank you so much, Rasheed. It's my pleasure.
Rasheed: So I want this episode to be a bit broad, but pretty deep when it comes to legal issues in the EU and therefore all the EU member states. And something I've been pondering the last year, two years or so, is this issue with the perception of EU law when it comes to people who are, what they call, broad libertarian or conservative or even progress studies oriented. And my first question is essentially to frame the conversation. Do you think that libertarians or conservatives really do not think enough about how EU law has liberalized many of the economies in the member states? Not only Eastern European economies, but also countries like France and Spain as well.
Adrián Rubio: I think you mentioned two different things that are relevant here. Yes, historically, the EU law allowed some national markets to get liberalized, especially in heavily regulated sectors such as telecommunications, airlines, or energy. But, and I must highlight this, having seen the latest developments in EU regulation, we can see that the EU tends to concentrate power at the center, at the Brussels bureaucracy, at the Brussels machinery. And so I think it might be a bit nostalgic to think that EU law, per se, in general favors liberty or favors liberalization. So what I would say is it tends to do so once it removes power from member states and or regions.
So let me explain this a little bit better. You can find a pattern, for example, just get the green deal regulations and directives, but also all the ESG governance mandates, or even the AI Act, or the notion of digital sovereignty. You see there that they liberalize those sectors, but once they've already gathered the bureaucratic control at the center in Brussels.
So they develop a bureaucracy, an institutional apparatus that yes will favor liberalization, but once it's under the control of Brussels. So I think from a classical liberal and or conservative position, I would remain skeptical. And if you think about this, we are not necessarily ideological about this.
So it's not yes or no to the EU as such. EU law has indeed liberalized markets. And we can see this especially in Eastern European countries. And also as you were saying, in many Western countries, especially from the South: Portugal, Spain, Italy, or Greece. Just because the Europeanization of these countries came at the same time as their neo-democratization, if you want. In other words, they had to reinvent themselves and agree to the "Acquis Communautaire", in other words, agreeing to the European set of norms involved, also liberalizing markets from an economic point of view. However, I just keep highlighting this point. EU law is a powerful tool when used adequately by lawyers and also by member states.
But EU law, per se, I think, is neutral. And so one needs to actually pay attention to specific measures because the tone might sound liberalizing, but then the mechanics involve giving away all the power and getting it centralized in Brussels.
Rasheed: So let's talk about this mechanical aspect. So one of the things that comes up a lot when it comes to EU law, as favoring or countering liberalization policies, is this reaction with the member states and how they interface with EU law. So yes, you have EU laws that are literally imposed upon member states, depending on the various complex levels of the EU and the member states. But it seems to me that when the many member states transpose EU directives into their local laws, they essentially maximize the potential regulatory aspects of the law to full effect. Rather than using it in, let's say, the intended, but let's say, the more liberalizing effect. But as you mentioned, EU law could be neutral sometimes.
Who essentially has the blame, if you were to put it that way, for this obtuse, regulatory increase over the last 20 years in the EU?
Is it the member states via transposition, or is it core EU-centric law?
Adrián Rubio: Actually, that's a really good remark that you're making, and I don't think I would find guilty parties while having the other hand, innocent parties.
I think first of all, there is ignorance about the EU machinery and the EU law mechanism. Not only domestically by legislative and executive powers, but also sometimes you can see it in the judicial power.
For example, you see some sociological behaviors that are somehow concerning. For example, in Spain, now you are mentioning Spain, that some courts are skeptical about using some mechanisms, some actually decent procedural mechanisms that eulo favors or allows just because it might seem like a political game.
So there's always that tendency to politicize, even procedural law. In other words, once a domestic court acts or activates an EU law procedure or mechanism, alarms and alerts by media, usually mainstream media controlled at this moment in Spain, are mostly directly or indirectly by the main party in power.
It becomes something political, not strictly legal. So who's to blame here? I think both first, it's the EU per se, as a pro, as a project, is to blame insofar as any other project is thirsty for more power. It has some inertia, which I think is problematic. Not only sclerotic in many liberalizing ways, or thinking about increasing freedom.
Because it paralyzes it or freezes it, it can also foster it, as we just discussed. In other words, that's why I said that my initial point is always neutral. I would call it Euro realist, meaning let's take it case by case. Let's take policy after policy and consider what normative judgment we can make on EU behavior as an institution.
So the problem sometimes is just that the institutions themselves need to prove that they are relevant, especially the European Parliament, and which European Parliament has been. Empowered throughout the latest primary sources reforms, like treaty reforms, just because it is. The EU always faces this issue of the democratic deficit.
And so to tackle this, I think the European Parliament has gained some increasing power. The problem is that there are some factions within the European Parliament that really have a different understanding of what the speed and the ambition of the EU as a polity, not as a union of law, not as a union or an inter-governmental union, but rather as a growing state, should be doing.
And so sometimes competencies are taken to. To their upper limits. I don't think I'm think I might I'm being clear with this, but it is something really remarkable when you see the European Parliament from the inside, that there's a thirst to show off, a thirst that they are relevant, that they can do stuff.
And so they bring in some sort of impetus to the European project that, earlier on, when the European communities were created, wasn't there. And I think that's also somehow denaturing, the entire technocratic aspect of some EU policies that used to work well, especially those that, for example, removed barriers to the internal market.
Rasheed: It sounds as if you're saying an increase in democratic say of the parliament has led to a decrease in democratic value of the EU project.
Adrián Rubio: Absolutely.
And I would wholeheartedly agree with this, with that statement. However, let's recognize that there's some tension here. In other words, we don't want a Brussels technocracy that there is, in other words, it exists technocrats, or let's actually get the general message first. Expertise is needed for important and especially tough decisions to be made.
Let's say it, for example, the starting point of my career at the European Parliament. Back in 2014, I faced a debate in which I saw how protectionist Spanish MEPs were about ports.
Ports, in other words, are a heavily relevant core, even a strategic sector for commerce. And you saw how the Spanish MEPs agreed only across parties in a multi-partisan way just to support the rejection of liberalization and the opening of the doors to competition.
But Italy faced, not so long ago, also a problem with the beaches and the control of those concessions. And they showed some sort of anti-liberal rising forces. So technocracy in those situations actually works better. In other words, if it is clear that free open markets favor more trade and not only trade or commerce in a.
In a worrisome way, but actually creation thereof. In other words, create trade creation, commerce creation rather than diversion with not only just rent seeking, but also governmental control that actually acts in a way that doesn't seek efficiency, but rather maintenance and increasing their bit of the, of their piece of the cake.
So yeah, technocracy is actually an ally for some key strategic sectors. In other words, paying attention to data, to figures, and to what works is necessary. Call it technocracy. I mean, you might call it technocracy just because they are those bad or. Hardly palatable decisions that some sectors in society will not agree easily with because they don't resonate with their intuitions in their hearts and minds.
Let's say that way. The EU actually is a great force to enact some tough decisions that at the political level would be very costly, and I think that should be the way EU law could help us lovers of freedom to foster freedom. In other words, that's why I said EU law is a powerful tool when being used, when used properly.
So I wouldn't demonize the tool that we've got. It's just like technology. You can hear now in all conversations about AI, and you find some. Techno optimists and techno pessimists. In my case, I'm more of a pragmatist here. The tool in and of itself is neutral. Whatever we do with it is what leads me to be optimistic or pessimistic.
So I think the value judgment is also here. Technocracy, per se, EU technocracy even, could be beneficial if oriented towards the actual public goods that we seek, meaning maximizing individual freedom. That also includes economic freedom. And unfortunately, I think that is part of the past in the EU.
In other words, when understanding fundamental freedoms, the EU is somehow reluctant now to take economic liberties as part of those fundamental freedoms. And you see it in many different areas. And this is concerning because this has a spillover effect. Spillover effect meaning at the domestic level, member states are also somehow in a tendency to replace the central, even primordial role of economic liberties as necessary conditions, not sufficient, but necessary conditions for the flourishing and the progress of societies and communities. So, EU law in terms of technocratic elements, yes, when used adequately.
However, if we grant all power to technocracy, the democratic deficit becomes unbearable. And you see this, especially in a very frustrating way, when you see that the EU machinery, Brussels, let's say it this way, uses double standards. And I think this is what annoys me the most about the current situation of the EU.
EU institutions do not enforce EU law equally, meaning first they create some room for political discretion, I would say, so that they enact or they initiate some procedures only and solely when the actor is somehow reluctant to the EU grand vision of what the EU ought to look like. However, when the same or almost the same decisions have been taken by any other member state, if that member state or its leaders are somehow favorable in general to the EU project, those mechanisms are not taken seriously or not even considered to begin with.
So I think that increasing or tackling the democratic deficit by increasing democracy is also dangerous. In other words, I'm not in favor, for example, of a more direct democracy at the EU level as some people on our side of the political spectrum on the right are. I don't think that the EU should be doing great or grand politics.
I think the EU should be doing what it's good at, which is tackling some specific sectors in which cross-border cooperation and mutual recognition, for example, of products, substances, or favoring a single union or a unified market that actually operates in favor of customers and producers, and citizens in general.
Do not forget the political dimension of the market player. I think the EU could do great things with that when focusing on that precisely. However, if we become a polity with all letters, then of course, democracy's a necessary condition for it. And I don't think that interacts or connects well with fostering the right decisions that, at the political level, are very hard to swallow.
For some things that Spain, in this case, or Italy, or like Bulgaria, are not happy doing at home, the EU is used as an excuse or almost even as an alibi. Technocracy can be your friend. Technocracy can be an ally for politics. So what is an administrative lawyer like me concerned about?
Mechanisms to keep that technocracy not only transparent, but also legitimate and accountable, that, when I teach administrative law or when I practice EU administrative law, that's everything I fight for. What I'm fighting for is making sure that whenever EU institutions exercise some political discretion or some technocratic discretion, if you might, we have the necessary legal and procedural tools to defend ourselves when our opinion hasn't been heard, we didn't have a chance to participate adequately or in a meaningful way in the decision making process or decisions have been taken in the shadows, in other words, with black boxes that are very hard to see some sort of throughput, transparency, and some scholar say.
Of course, judicial review then becomes the necessary tool that any lover of freedom, also at the EU level, should be ready to use. And I cannot emphasize this enough. I think libertarians, conservatives have given up on litigation in many ways.
Rasheed: Why do you think that happened? So courts have grown very comfortable, not only in Spain, but definitely in Spain, to annul, for example, urban plans for strategic environmental assessments.
Adrián Rubio: Yeah.
Rasheed: Do you think that judges are more receptive to procedural rights claims, environmental review, and consultation than to economic freedom claims? Is this why you think classical liberals or libertarians do not do litigation as much as they should, or is there another reason?
Adrián Rubio: That's an excellent question that I also pose to myself very often as an EU administrative lawyer who actually avoids litigation as well as part of my work. So some of the reasons that motivate my choice of preferring alternative mechanisms is that once you grant the decision to a third party, in this case a judge, you lose a bit of control.
But this is not unique to EU law. In other words, this is not an innate problem of EU law or EU law in terms of judicial mechanisms or procedures. No, this is part of any system in which you can go to court. Adding a hetero composed decision making solution or resolution mechanism will always increase uncertainty.
Of course, uncertainty is not only a cost, but also a transaction cost that comes with time.
Time, when understood properly, means money. So, of course, any reasonable, I would say reasonable lawyer, when your client is pushed or a silent decision means concrete costs for expected positive outcomes without the certainty that they will be that.
It's an economic analysis of the law that I think we libertarians and conservatives actually developed not only in practice, but also as an economic or scholarly discipline, which is important. In other words, the law and the legal processes do not operate without any economic efficiency consideration.
However, I definitely see a window of opportunity here. In other words, if we train like-minded lawyers, especially young lawyers who are mostly EU natives, if you might. In other words, the EU legal system, which is very unique, is no longer foreign to the new generations of European lawyers.
We grow up studying constitutional law, knowing that constitutional law is at the level of EU primary law. So that coexistence between domestic law and primary law at the EU level is part of the general mainstream understanding of any lawyer trained in the EU at the moment. So we can use that.
Judges. So what's the issue with judges? First, judges are also part of the general society; in other words, yeah, of course, they are experts of one kind. I wouldn't call it technocratic so much. I would call it counter-majoritarian, which, understood wrongly, could also mean anti-democratic. But for the same reason that I argued in favor of some technocracy, I will also argue in favor of some counter-majoritarian mechanisms in the legal system of any polity, community member, state, region, or EU as a pseudo-generous polity. However, domestic judges are somewhat reluctant in general to be the ones who move the debate forward. So what do I mean by this? And this is actually part of my professional experience.
This is what I've seen so far. Judges are not in a position to actually advance EU law. And it's not their role either. So let's actually be honest about this. We cannot expect a judge to introduce arguments of economic efficiency or economic liberty when you see the trends of not only domestic policy, but also EU policy going in different directions.
So if the focus of EU law right now is, for example, on SE or on ESG environment, social, and governance, introducing the pillar of protecting economic individual freedom sounds a bit pushy; in other words, it sounds a bit outside of the scope of the interests of the current EU. And so I think that we cannot expect judges to be heroes.
I think they might be at some points also villains. It goes both ways. But what I'm saying is we should not expect them to become martyrs. So I think that there's a great window for legal mobilization, a concept that in the US, for example, is very common. In common law systems, it's very common to use litigation strategically to get some topics back on the table.
However, it is not so much part of continental law tradition, and I think that's something that EU law especially fosters and favors us to try. Let me go back to my teaching. EU law is not taught as other courses that I teach, like administrative law in Spain, for example, or comparative administrative law.
In EU law, when you read cases and you use case law, there is some combination, an interesting combination between some very continental law, civilian law doctrines, but also there is some element of common law. I would say physiology, in other words, not so much the instrument but the methods, the way it works.
The case law of the Court of Justice, the EU, evolves in a way in which we study cases by their name. That's something that, for a Spanish law student, is very uncommon. So, EU law, I think, offers the possibility to be a bit experimental. And this is something that I encouraged my EU law students back in the past.
EU law is almost a laboratory, a legal laboratory. In other words, since it draws from so many legal cultures and traditions, you might try, for example, to use some legal mobilization. In other words, why shouldn't classical liberals, libertarians, or conservatives use those tools and try some strategic litigation?
For example, you just said in Spain, there's the case of the urban planning and the local municipal plans for the environment or design of cities, et cetera. It seems like only some elements would be read by judges as substantial or necessary elements for an adequate plan, but it is not necessarily the case.
EU law grants and allows you to actually talk about other fundamental freedoms of the EU. Economic freedom is there, of course, very conditioned. Very conditioned, and always somehow in a secondary order, which is indeed by design, a problematic feature, not only for the EU, but also of constitutional law across the globe.
Spain, for example. Of course, there is a right to private property, but it is always subject to the general interest. So there is already a door for abuse of power by the public institutions, public authorities, who are those who interpret what the general interest looks like and entails. You are already somehow getting your economic freedoms and liberties a bit decaffeinated because they are subordinate manner.
In other words, they're of a subordinate character. They're not as primary as, for example, environmental rights, which are very novel in many different ways. In many respects, some elements of environmental law are unique legal experiments. Like talking about rights of nature or animal rights, those debates weren't there 100 years ago.
In other words, using even the language of claim rights and privileges and liberties, and no rights. So if the EU was experimental, creating and developing legal mechanisms to protect animal welfare or environmental safety, or protect your public health, why shouldn't it also be good for us to become a bit experimental and, through litigation, try to get the EU judiciary, in this case, not only in Luxembourg, but also at the member state level.
Remember, every single courtroom in the EU member states is also a potential EU court. Why shouldn't we try that? Has it even been tried?
Rasheed: That's my question to you. Has it? So one case comes to mind very quickly,
This is the case in Barcelona, here in Spain, a licensing problem where Barcelona restricted the number of licenses for things like Uber.
And they took that case to court and used a preliminary reference in the Cataluña court to push the EU to have the EU say, "yeah, this actually contravenes different economic freedoms that EU law guarantees.
I would think you would have a lot more of those things happening. Is it a fact that the lawyers themselves don't try to push these things?
They don't actually try to use EU law via preliminary reference, for example, to actually get EU law input into these deregulatory cases.
Adrián Rubio: Excellent example that you bring in. So, something that I would say that I already mentioned earlier, it is true that at the moment, Spain might not be the best example for this because courtrooms are seen almost as quasi-parliamentary entities at the moment. So we have ministers from the current government accusing specific judges, targeting specific judges with name and surname, for "lawfare."
In other words, for abusing the legal system to accuse members of the government or members of the president or the prime minister's family. So, at the moment, it might not be representative, what we find in Spain. So I would be interested in checking what's going on in libertarian or conservative circles out in other member states.
Because what I know at the moment is from Spain. So yeah, there is some skepticism by lawyers to actually invoke EU law. First, it feels a bit remote. It feels remote, especially for the older generations. I think there's a sociological element to it. Younger lawyers, I think, would be more comfortable, I believe advancing some EU law arguments before the courts because we are more knowledgeable, or as I said, more native to EU law in general.
It would be a bit risky for an older person. Older people tend to be litigators. That's the point. That's why I said the sociological element. If you see the structure when you're a junior associate, you'll most likely work just with paperwork. You'll be preparing paperwork. Sometimes you'll litigate, but you'll usually litigate with civil or criminal cases.
Not so much public law, administrative law, and regulated sectors law. When you do that, though, I don't see any veto for us to try. Yeah, we've been humble about it. And this is not something I would like to say about ourselves, about us, but I think we have become comfortable knowing that there's nothing good in the EU.
In psychology, they call it learned helplessness or something like that. Meaning you somehow naturalize that life sucks, meaning EU law sucks, or EU law only favors arguments on ESG or environmental protection, or social welfare elements.
And it is true that the EU mostly is about that. But let's be honest, the agenda or the docket of the courts in Luxembourg is not made up by itself. It is also on us to bring up cases. So yeah, I think we, especially us, those liberty lovers, fight freedom fighters if you want. We shouldn't be afraid of trying, we shouldn't be afraid of trying new things.
Rasheed: My friends in Ireland, they always lament about the standing given to them by the Arrhus Convention, and they use that standing to go and block all these potentially very good infrastructure projects. And they're saying, because of EU law, that this is possible, slowing down progress in Ireland. But at the same time, it seems on the flip side that pro-freedom organizations or NGOs could also have standing to do litigation in favor of more development, but they don't. So where is the tension coming from here?
Adrián Rubio: First of all, the Arrhus Convention is not necessarily an EU innovation. I would call it more of an international law, piece of legislation or treaty, that is adopted, that has been adopted by the EU as such. And I think this is the key. So the Arrhus Convention is now "Europeanized."
However, that Europeanization of Arrhus logic is again, somehow biased or linked to some specific causes. Why? Because Arrhus, in fact, is a great convention to secure access to justice, transparency, and participation in environmental law matters, in environmental decisions in general. However, it is not of unlimited abuse that it comes.
In other words, access to justice cannot come with unlimited abuse of it. So suppose, for example, that there is a case in which some limits for emissions come up. Of course, a lower and economic system would say there are schemes to control negative externalities without actually preventing companies and industries from functioning or growing.
There are some mechanisms to actually make things even; however, our responsibility of participating in the decision making and especially access to justice, in other words, enact or initiate judicial review, is mostly and solely monopolized by environmentalist NGOs. So those who speak about themselves as being the protectors of the environment, as if conservationism had never been conservative to begin with, I urge them to read Roger Scruton and his treatment of the environment and green conservatism, et cetera. So, besides the political element, from a legal point of view, Arrhus would allow an association, a think tank, an NGO with a legitimate interest, which we need to discuss more on further what that means.
Of course, also something that is being, has always been debated at scholarly events and conferences is whether the Plowman, like the main landmark case granting access to the courts in the EU, is too strict.
Rasheed: So in 2019, the Gas Natural case, the Supreme Court used indirect effect to align restrictive Spanish energy rules with EU liberalization tools.
In my view, this is a very good thing for libertarians.
But could they argue that essentially the ambiguous Spanish regulations must be read in the least possible, burdensome way, as in using that precedent as a doctrinal effect for thinking about how to go about using indirect tools in procedure rules from the EU in this member state, Spain, but other member states. And then to submit a bit larger question, what do you think are the key procedural tools that people who are more interested in liberalization should actually think about using or deploying litigation or otherwise?
Adrián Rubio: The first case, when you mentioned it, sounds a lot like Simmenthal.
Rasheed: Yes.
Adrián Rubio: Simmenthal, when I was teaching it at the beginning, when I learned it as a student, I never made the connection with liberty.
Last time I taught it, which was a couple of months ago, actually, I realized that Simmenthal can become a true liberty tool.
In other words, this idea that national courts, any national court, not those at the top, can reassess bureaucracy and cut bureaucracy at the domestic level without waiting for Parliament or waiting for the legislature or the executive, is a powerful tool. In other words, EU law sometimes is on our side, and having this idea of what I can say, cutting the tendency of some member states to just add more burdens or more layers of bureaucracy and restrictions beyond those EU directives.
Simmenthal allows us to go before the courts and redirect the conversation. In other words, limiting additional steps that would just denature, in fact, the directive's purpose or the purpose of the directive. Of course, we also have to bear in mind that procedural autonomy of member states is there, and so usually in those areas with shared competencies, the EU directive will tell us this is what the EU as a whole wants, and that's our secondary law, meaning this is what must be present.
And of course, there are always some students who try to go above and beyond. Usually, when that happens in, for example, environmental law, which is a shared competence, it tends to go against freedom. It tends to go in favor of further restrictions. However, let's keep in mind that Simmenthal, when invoked adequately, could also become a shield of liberty.
It could allow us to force the court to review. Is Spain going way too far? Is Spain adding bureaucracy and further restrictions that actually weren't there at the beginning of EU law, per se?
Rasheed: That is where the irony comes in, where it seems like EU jurisprudence doctrine to review the transposition member states of EU law that can say, Oh, that was actually a bit too much. I guess this is maybe the psychological answer you have. Why don't lawyers or groups of interesting parties, very pro-freedom, try to enact review or transportation review or preliminary reference via, for example, invoking doctrinal issues like in Simmenthal? Seems to be a very obvious thing to do.
Adrián Rubio: In fact, in Spain at least, what I would say is that I think we lack some sort of group of people who have the capacity of being parties in those legal procedures.
Just think about it. If you're a lawyer representing a firm with a direct interest, it's the involved party in the decision, or the restriction will be directly imposed on them, it's tough to persuade them. That litigation could be seen as something strategic that goes beyond the specific case. I cannot easily sell to a client, "let's go to core. Let's wait for the time, because we might be able to actually reduce the ambition of this transposition of the directive."
So maybe what that points to is that we actually need a group of people that are capable of taking those cases, maybe even defining a pro bono system. That's the entire idea of legal mobilization. In other words, lawyers or jurists together, trying to use the legal mechanisms lawfully, in a law-abiding way, to push the law.
Not to push in a political sense, but actually to filter. Abuses of law that come through even legislation, but especially as you said, transposition of directives, because it also disrupts very much the other goals of European integration, such as the internal market, and you see this with pesticides, for example, all the time.
Mutual authorizations are not as easy as you might expect in a single market, for example. So a product, of course, active substances would always come from the approval to enter the market at the EU level, per se, through a regulation, actually, which is a decision of course. Administrative law at the EU level is peculiar because we use a legislative decision or quasi-legislative decision to actually approve a substance, which is strange.
From a normative technique point of view, it's unique, strange. So once you have that substance accepted, then you need to approve actual products, having those active substances. And this is cross-sectoral, in other words, this could be in plant protection products, but it could be in biocides.
It could be in human medicine products or cosmetics, or anything chemical, which is what I work on. My examples come from my actual practice. Then you see that what happens, for example, in Estonia might not be echoed as easily as you expect from Spain. So there's a product that in Estonia has no problem whatsoever to be approved.
And then in Spain, it's not approved, and then it takes time. And of course, if you are a producer who has a European mindset, in other words, a European integrated market point of view, then you don't have legal mechanisms to force Spain to take into consideration what Estonia is doing.
And so, some pre-litigation, it would be at the administrative procedure review, in other words, before getting into Spanish administrative courtrooms. So, reviewing administrative decisions within the administrative procedures and the mechanisms that we've got.
I faced this situation a couple of times, and I had to try to persuade the ministry in this case of health, agriculture, and environment altogether that the situation would be detrimental to the interests of Spanish agriculture vis-à-vis Italian agriculture and Portuguese agriculture.
This kind of argument shouldn't even exist. In other words, if we truly believe in the internal market and we've got some mutual recognition schemes, why aren't they always working almost in an automated manner?
So of course, there's room for us.
Rasheed: This was one of the main critiques in the Draghi report, I believe, about the problem of harmonization rules or lack thereof, and then the lack of market enforcement by the commission. The current commission has done 80% fewer enforcement actions than previous commissions.
So the main thing the commission should be doing, policing the internal market, they have stopped doing that and decided to do other things. Are there actual legal mechanisms to force the commission or other parties to actually come back to the table to do the things that they should be doing?
Adrián Rubio: That's a great question, and I think in fact that the higher levels of democratization of the European Parliament are here, are allies. We can, through parliament, require or urge the commission to start doing those procedures to take their job adequately and seriously. And indeed, what you said is so true. In other words, the European Commission now, if you check even the legislative agenda when a new commission is appointed, the College of Commissioners seems to be a different animal than it used to be. In other words, it's not about the members, it's also about the portfolios, the political priorities at the European commission level set by at least partially the European Council, this new institution after Lisbon. And I think it's politicizing the European Commission, but not in the right way.
In other words, politicizing in and of itself, again, is neutral. I'm always very functionalist when it comes to making normative or value judgments about what works and what doesn't work. Let's check. Let's see. Give me the evidence, and then I'll make my judgment. A political European Commission could work better if accountability, transparency, and participation are enhanced, adequately secured.
But if you don't touch the mechanistic or how, what can I say? The bureaucratic rules for their operating systems, and you make it political, then you are empowering a college of commissioners, in this case, with some competencies that weren't even foreseen by the treaties. And this is what we see now with Ursula von der Leyen and all the parties of the great coalition supporting her and her commission, trying to force ideas, pushing an agenda. First of all, it's not that it doesn't come directly from citizens because, of course, you can argue that, yeah, we did Spitzenkandidat.
Of course, Ursula von der Leyen wasn't the Spitzenkandidat back then. So it works whenever it has to work. So again, politics, high-level politics, if I may, you might think, "okay, they’re indirectly legitimate." Let's assume that for the sake of argument. So we are not gonna contest their legitimacy. But when you see the legislative agenda of what kind of proposals the commission will take and will present to the council in the European Parliament, almost 70% have nothing to do with the internal market or its defense.
It's all about expanding more and more regulation, and I wouldn't even say technocratic regulation; it's just regulation. Let's regulate. Regulate, as in let's limit and precondition what the European Union will be doing, what it will be able to do, et cetera. In other words, it's redirecting the entire European Union with a political vision. "These are our priorities. These are not our priorities." However, the European Parliament now has tools, including written questions, oral questions. It works almost with a very limited amount of capability in this case, but it can make some noise.
In other words, what happens at the European Parliament makes noise. MEPs know this, and in fact, with the right ideas to defend freedom, they're capable of doing great things, at least making that noise. What happens then with lawyers and jurists who do not want to play the politics game?
Let's say it this way. The law in the courtrooms, in other words, judicial procedures, could also be a good locus or a good forum for us to enhance and advance freedom.
I don't think it's a problem of will, I think it's a problem of a lack of network.
In other words, I don't think we know one another enough, so maybe this is a, to be honest, piece of homework for think tanks, associations. We're not good at keeping in contact. Or maybe it's just dominated by economists. I don't have a problem with it, but I'm saying maybe the legal voices have a place, and their expertise might be of help to the cause of freedom.
So I think there's room for some innovative bottom-up associative or association kind initiative that would lead us to explore at least the possibilities of EU law, seen by the judiciary, to actually advance freedom. Just with the same EU law, in other words, with the same pieces of legislation and the same case law that have been used politically against freedom.
Rasheed: So let me ask one final question. If you were advising a libertarian, classical liberal, or progressive think tank in Madrid, Dublin, in Brussels, what kind of cases would you tell them to start with? What do you think are the low-hanging fruit for market liberalization using procedural tools of EU law?
Adrián Rubio: So first, the last one that we just mentioned, it would be close to what I'm trying to do, I mean, at a lower level, but anything using access to justice. In other words, using procedural rights to fight disproportionate environmental regulation, or I wouldn't even call it environmental, I would just call it against innovation, or extremely precautionary principle-based.
I'm writing a paper on that, by the way. So that's why it comes naturally to me to argue for this. So that the starting point of environmental regulation and lawmaking isn't necessarily prohibition by nature, by default. So getting access and getting our voices respected or protecting economic liberties as part of the dilemma of the proportionality test at the end of the day, I think we just don't show up. That's the point. So I think that's the first thing, at least a team of a couple of lawyers, public law-inclined lawyers should focus on. Let's explore, let's see what the procedural rules could allow us to enter the courtroom with and make some arguments that haven't been made before or that usually don't come up.
It's not that we don't think about them, it's just that we use different fora. We're somehow scared of going to court. And I understand because if the funding is not from an association per se, but rather we are working with clients, we cannot, and we should not in good conscience be using the company's expectations, trust and name to advance these cases.
So that's one thing. Anything related to flipping a bit, the dominance of the anti-free AARHUS Convention, if you might put it this way. The second kind of cases, anything that fosters market unity. In other words, enhancing the single market. The pathology here is again, the European Commission, by treaty and by definition, should be the one who initiates all these procedures.
They're not doing it all the time. So maybe we actually should also put some political pressure to make sure that this happens by the commission, and alternatively, simultaneously using or challenging barriers at the domestic level, applying the treaty of the function of the European Union. Articles
I think it's 35, 34, 35, 36, they are powerful articles that would allow us to bring up cases just in defense of the market, union market unity, if you might.
So the last one, just so that we echo a bit of what we discussed together. Why shouldn't we try to explore where Simmenthal takes us from a liberty point of view? In other words, any case related to permits, licenses, or deadlines. Anything that is very explicit in EU law that is not respected by the national administration. And this is not uncommon. First of all, the transposition of directives sometimes works well, sometimes does not work well. Maybe we need a team in a new initiative association, think tank, whatever you call it, in Dublin, Brussels, or Madrid, to monitor how those transpositions go. And this is also an important thing that I usually repeat a lot in class. Directives are the most preferable piece of legislation that the EU can produce out of regulations, in other words, binding with EU law, text directly from Brussels.
Vis-à-vis directives, meaning with a task of having to reinterpret or accommodate the directive into the letter of domestic law. Those who love freedom, we would in general almost always prefer the latter. And why am I saying this?
Because then there are other places that you can persuade people that those decisions, that favor liberty, that favor autonomy, and other sorts of freedoms, are preferable. Once the decision is made in Brussels and it's part of our regulation, good luck. You are out of the game, and you have to go through litigation, through case law, through the court.
The process of the transposition of those directives, you can take part in it through the domestic organizations. Of course, it involves a little bit of lobbying, but yeah, why not? A think tank should also produce reports, position papers. I would definitely think that lawyers are well-suited to do this in an articulate, convincing, and persuasive manner.
And then once it goes wrong, which might go many times before the courts, we should invoke Simmenthal and try to see if the doctrines of direct and indirect effect could allow us to request or force national administrations to act in efficient liberty-defending manners. So again, my takeaway here is there's room for us jurists and lawyers, who know about EU law, to try to see how far it takes us to defend freedom using the tools of EU law, not just withdrawing from the entire game. I think we did this a bit, I myself included. In other words, I just added the label of EU law as part of an almost globalist project, and so I don't wanna have anything to do with it.
But then I needed to work with it because that's what I'm decent at. That's what I know best. And I realized that we have some powerful tools that, when used in the defense of freedom, could be beneficial and, most importantly, successful. So why shouldn't we explore or concentrate our energies into two or three of the ones that we mentioned during our conversation today?
And we start checking out what works, what doesn't work. And again, keeping an open mind in a functionalist way, in a pragmatist way. This is, at the end of the day, what being a Euro realist looks like. I'm not per se, a Euro skeptic. I do believe in an idea of Europe, perhaps not so much about the European Union federalist, supernational thing that, of course, I do not share.
But that's my position on this. But I'm not a Euro skeptic by nature either. In other words, I know that EU law allowed modernization in a liberalizing way of the economy. And I think priorities for the EU should remain mostly economic, not political. So why shouldn't we go back to it and try to see what's left?
Rasheed: Adrian, thank you so much for coming on today. I believe this episode will be very helpful to many people.
Adrián Rubio: Thank you so much, Rasheed. It's a pleasure.
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